Stakes high with Tennessee sewer mandate

April 15th, 2012by Ansley Haman in News

City Attorney Mike McMahan

Photo by
Angela Lewis/Times Free Press.

FAST FACT

The 2010 lawsuit filed by the Tennessee Clean Water Network against the city claimed that, between January 2006 and June 2010, the city had 32 waste stream discharges totaling about 319 million gallons of water, and 489 sanitary sewer discharges totaling 35 million gallons. The parties are currently negotiating an agreement in the suit.

And into new pipes, manhole covers, pump stations and wastewater treatment plants.

The potential for hundreds of millions of dollars in sewer testing and repairs faces Chattanooga, which soon will enter an agreement with the Tennessee Department of Environment and Conservation on how to handle the problems. Meanwhile, secondary utilities are entering into voluntary agreements with the state and the U.S. Environmental Protection Agency.

Not only are the potential costs high -- Metro Nashville's consent decree likely will cause the city to spend more than $1 billion to repair its systems -- but a failure to act or act promptly could prove even more costly. Penalties for not acting fast enough can include fines, indictments and even complete sewer moratoriums that can halt all development. That means no sewer connections for new housing, industrial parks or even new or increased water use.

If a moratorium is in place when the next Volkswagen-type project comes along, it's unlikely it would be able to connect to the wastewater system at Enterprise South industrial park, Water and Wastewater Treatment Authority attorney Chris Clem said.

Officials from the WWTA, which has taken control of several of the county's older sewer systems, recently told Hamilton County commissioners that their price tag to repair the problems could reach $100 million over the next five to seven years.

Chattanooga City Attorney Mike McMahan refused to venture a guess about what the city will have to pay for its repairs.

Nashville and Chattanooga aren't the only Tennessee cities involved in a wastewater enforcement action. At least two others, Knoxville and Oak Ridge, are dealing directly with the EPA.

Oak Ridge is racing to comply with EPA requirements of zero overflows -- not even 5 gallons -- in a storm.

"They don't fool around, and the fines can be horrific," said Gary Cinder, director of Oak Ridge Public Works, who is negotiating only with EPA at this point. "We're in the negotiation phase of that."

Chattanooga is negotiating with the environmental agencies and the U.S. Justice Department.

Knoxville's primary wastewater provider, the Knoxville Utilities Board, agreed to an EPA order in 2005 and is scheduled to spend $530 million over 10 years in upgrades.

Repairs in other cities have led to double-digit wastewater rate increases and issuance of new debt to pay for them.

The possibility of a moratorium for Hamilton County is real, Clem warned.

WAIT-LISTING DEVELOPMENT

One needs only to look as far as the town of Signal Mountain to see what a moratorium can do.

The town has been under one since 2007 after state regulators repeatedly tried to get the town to comply with its water pollution permit. Signal Mountain keeps a waiting list of proposed homes and businesses seeking to connect to the wastewater system.

Prior to the moratorium, the Town Council had approved a zoning overlay that would have allowed development of homes on Shackleford Ridge on one-third-acre lots connected to the sewer lines. But the moratorium prevented sewer connections. And before restrictions began to loosen, the zoning was repealed.

Town Manager Honna Rogers recently welcomed the opening of a Subway restaurant, which the state might not have permitted two years ago, she said last week. But the town and WWTA are making progress on the system and expect to ask in coming months to hook into the city's Moccasin Bend Wastewater Treatment Plant.

Other restaurants had sought permits from the state to open in Signal Mountain during the moratorium, but Rogers said "the state said, 'No, you're going to use too much water.'"

She could think of only two that persisted and were able to open -- Pie Slingers pizza and the now-closed 1790. And those owners jumped through many hoops to convince the state to let them open, Rogers said.

The state did make emergency exceptions for homes near sewer lines that had been on septic systems but experienced failures that couldn't be repaired, she said.

But she noted that the moratorium wasn't as hurtful as it might have been.

"I don't think it was as detrimental as it would have been at another time in our economy," Rogers said.

Other towns, including Williamson County's Brentwood, also have seen economic development grind to a halt because of a moratorium. Brentwood pumps its wastewater into Metro Nashville's treatment system. One part of Nashville's sewer system dates to the late 1880s.

"Here the sewer systems were built in the 1970s and met all the standards at that time," said Brentwood City Manager Mike Walker.

His city's moratorium began after a 2006 TDEC and EPA order and greatly restricted development from 2008 to 2010. Development projects that already had been approved before the moratorium were allowed to move forward, he said, but new ones had to be added to a waiting list.

The city, whose system is spending between $28 million and $30 million on upgrades, raised rates by 25 percent in 2008 and is issuing debt for some of its work. Then Metro Nashville raised rates on secondary users such as Brentwood.

The utilities ringing Nashville "kind of united together," Walker said. "We were able to work out something reasonable."

The moratorium has mostly lifted now, Walker said.

RESPONSIBILITY FOR USERS

The WWTA will have to inspect and smoke test as many as 26,000 residential and commercial sewer connections as part of its repair program.

Hamilton County Commissioners Fred Skillern, Joe Graham and Warren Mackey told members of WWTA that they believe individual property owners should be responsible for wastewater infrastructure on their land.

Though Clem is a staunch Republican who espouses a strong belief in individual property rights, he warned commissioners that TDEC and the EPA might not be understanding if the WWTA reports that customers are unwilling to comply or that they've already been assessed. They could force the WWTA into a consent decree, which raises the stakes in its repair timeline, he said.

"They just want to know how many you've got tested and gotten fixed," Clem said Thursday. "They're not interested in any excuses. When they look at us, they're like, 'This is going to be done in five years or there's going to be indictments and moratoriums.'"

Cinder, of Oak Ridge Public Works, said EPA didn't initially sympathize with one of his town's biggest hurdles -- getting another federal agency to make wastewater upgrades. The Department of Energy's Y-12 facility is one of Oak Ridge's biggest wastewater customers.

"They really hadn't thought about the nature of the facility and the fact that we can't just go marching in with a backhoe and fix something; they've got barbed wire fences and weapons," Cinder said.

After much convincing, Cinder believes the EPA is finally beginning to understand.

"They've at least been receptive to our asking for them to understand the situation," he said.